Citation Nr: 1752890 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-33 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus type II, claimed as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Loreain Tolle, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1971 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. With regard to the characterization of the Veteran's claim for service connection for diabetes mellitus, type II, the Board observes that such claim had previously been denied in an April 2004 rating decision. However, VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c) (2017). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). In the instant case, subsequent to the April 2004 rating decision, the Veteran's service personnel records were received in March 2011. Such includes documentation of the location of USS AMERICA (CVA-66) during the deployment dates of June 5, 1972 through March 24, 1973. The Veteran has claimed that he was transferred from the USS AMERICA when the ship was not in port. Therefore, as such are relevant to the instant case, the Board finds that 38 C.F.R. § 3.156(c) is applicable and his original claim is reviewed on a de novo basis. Consequently, it has been characterized as shown on the title page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, solely on the basis that such is the result of exposure to herbicide agents during his service with the Navy in the Vietnam era. He maintains that he was stationed aboard the USS AMERICA (CVA-66), and on or around December 15, 1972, he departed on a mail plane to Da Nang, Vietnam, where he stayed for several days in transit houses before traveling to Okinawa, Japan, and then back to the United States for discharge from active duty. The Veteran previously stated that, following his time in Da Nang, he traveled to Guam and then back to the United States; however, during his September 2016 Board Hearing, he stated that he went through Okinawa on his way back to the United States. VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The diseases for which service connection due to herbicide exposure is presumed include diabetes mellitus, type II. 38 C.F.R. § 3.309(e). The Veteran's service personnel records indicate that he served on the USS AMERICA (CVA-66) from March 26, 1971, to December 15, 1972. In March 2004, the United States Armed Services Center for Research of Unit Records (USASCRUR) indicated that, from July 1972 to February 1973, the USS AMERICA was deployed to the coastal combat zone of Vietnam conducting combat aircraft launch and recovery operations at sea in the Gulf of Tonkin. They stated that port calls during the period included Subic Bay, Philippines; Hong Kong, B.C.C.; and Singapore, but no port calls were made to Vietnam. Also contained in the claims file is a February 2011 Defense Personnel Records Information Retrieval System (DPRIS) report that indicated that the 1972 and 1973 command histories for the USS AMERICA (CVA-66) were reviewed. The report stated that the USS AMERICA conducted special operations on Yankee Station in the Gulf of Tonkin from December 10-26. The report also indicated that deck logs did not document any instance that the USS AMERICA anchored or docked in any port in the Republic of Vietnam. Rather, the USS AMERICA conducted her operations in the Gulf of Tonkin during the entire period and the deck logs do not document any personnel stepping foot in Vietnam. In March 2011, the National Archives and Records Administration (NARA) indicated that they located the deck logs for the dates requested. However, with respect to passenger manifests or lists, they had no means to provide the information from the records in their custody. Notwithstanding the foregoing, and as previously noted, the Veteran has specifically alleged that he set foot in the Republic of Vietnam in December 1972 in transport back to the United States for discharge. The Veteran's service personnel records confirm that he was stationed on the USS AMERICA during this time period, and was transferred from the USS AMERICA to "CO, nearest separation activity CONUS" on December 15, 1972. He arrived to the United States on December 20, 1972. Therefore, unless the Veteran flew from an actual military airport, it may not be possible to corroborate flights directly from naval vessels. Nevertheless, the Board must remand this claim because it is not clear that VA has exhausted all reasonable efforts to verify the Veteran's claimed exposure to herbicide agents. Specifically, a remand is necessary in order to provide him with an opportunity to submit statements from persons who knew of the nature of his journey from the USS AMERICA to the United States, to include civilian friends and family. Thereafter, the AOJ should attempt to verify the Veteran's claimed exposure to herbicide agents in Da Nang, Vietnam, during his transfer home from December 15, 1972 to December 20, 1972, to include requesting information as to whether it was common practice for naval personnel to travel through Vietnam, to include on a mail plane, as a means of transferring back to the United States. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to submit statements from persons who knew of the nature of his journey from the USS AMERICA to the United States, to include civilian friends and family. Any person making a statement should provide as much description of the exposure as possible and include (if applicable) his or her name service number, unit assignment, and dates of service. 2. Contact any appropriate entity, to include the U.S. Army and Joint Services Records Research Center (JSRRC), to attempt to verify the Veteran's claimed exposure to herbicide agents in Da Nang, Vietnam, during his transfer home from December 15, 1972 to December 20, 1972, to include requesting information as to whether it was common practice for naval personnel to travel through Vietnam, to include on a mail plane, as a means of transferring back to the United States. All responses received must be associated with the record. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).